Hughes v. Palmer

OPINION AND ORDER RE-OPENING CASE, DISMISSING THE
PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL

GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.

This is
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Delbert Hughes (“Petitioner”)
was convicted of first-degree felony murder, Mich. Comp. Laws
§ 750.316(1)(b), felon in possession of a firearm, Mich.
Comp. Laws § 750.224f, and possession of a firearm
during the commission of a felony, Mich. Comp. Laws §
750.227b, following a jury trial in the Wayne County Circuit
Court in 2010. He was sentenced as a second habitual
offender, Mich. Comp. Laws § 769.10, to life
imprisonment without the possibility of parole on the murder
conviction, a concurrent term of 22 months to five years
imprisonment on the felon in possession conviction, and a
consecutive term of two years imprisonment on the felony
firearm conviction.

Following
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals raising claims
concerning the sufficiency of the evidence, the admission of
police opinion testimony, the effectiveness of trial counsel,
and the alleged use of perjured testimony at the preliminary
examination and trial. The court denied relief on those
claims and affirmed Petitioner's convictions. People
v. Hughes, No. 301332, 2012 WL 2402050 (Mich. Ct. App.
Jun. 26, 2012) (unpublished). Petitioner filed an application
for leave to appeal with the Michigan Supreme Court, which
was denied. People v. Hughes, 493 Mich. 921, 823
N.W.2d 564 (Dec. 26, 2012).

Petitioner
dated his federal habeas petition on November 18, 2013. In
that petition, he raised the same claims presented to the
state courts on direct appeal. Petitioner subsequently moved
to stay the proceedings so that he could return to the state
courts and exhaust additional issues concerning the notice of
the charges and the effectiveness of appellate counsel. On
February 13, 2014, the Court granted Petitioner's motion
to stay the proceedings and administratively closed the case.
The stay was conditioned on Petitioner presenting his
unexhausted claims to the state courts within 60 days of the
Court's order and, if he was unsuccessful in the state
courts, moving to lift the stay to re-open the case and
proceed on an amended petition within 60 days after the
conclusion of the state collateral review proceedings.

On
April 21, 2014, Petitioner filed a motion for relief from
judgment with the state trial court, which was denied on
October 6, 2014. See Register of Actions, People
v. Hughes, Wayne Co. Cir. Ct. Case No. 09-022390-01-FC.
Petitioner then filed a delayed application for leave to
appeal with the Michigan Court of Appeals, which was
dismissed as untimely under Michigan Court Rule 7.205(G)(3)
(providing a six-month appeal period). People v.
Hughes, 326991 (Mich. Ct. App. May 12, 2015). It does
not appear that Petitioner sought leave to appeal with the
Michigan Supreme Court. Rather, on July 21, 2015, he filed a
second motion for relief from judgment with the state trial
court, which was denied on July 18, 2016. See
Register of Actions, People v. Hughes, Wayne Co.
Cir. Ct. Case No. 09-022390-01-FC. Petitioner has not
appealed that decision and would be precluded from doing so
under Michigan Court Rule 6.502(G) (stating that a defendant
“may not appeal the denial or rejection of a successive
motion” for relief from judgment).

This
matter is now before the Court on Petitioner's letter
request seeking to re-open this case, which was filed on
October 31, 2016. Petitioner did not file an amended habeas
petition with his request. The Court now RE-OPENS the case
for the limited purpose of determining whether Petitioner
should be allowed to proceed on his habeas claims.

Petitioner's
request to proceed on his habeas claims must be denied
because he failed to comply with the conditions set forth in
the Court's order staying and administratively closing
the case. The Court conditioned the stay on Petitioner
returning to state court within 60 days of the Court's
stay order, exhausting his state court remedies, and then
moving to re-open his case on an amended petition within 60
days of the conclusion of his state collateral review
proceedings. Petitioner did not do so. First, he did not
return to the state trial court within 60 days of this
Court's stay order given that the order was Dated:
February 13, 2014 and he filed his first motion for relief
from judgment with the state trial court on April 21, 2014.
Second, he did not properly exhaust his claims in the state
courts because he did not timely seek leave to appeal with
the Michigan Court of Appeals (or the Michigan Supreme
Court). Third, he did not return to this Court within 60 days
of the conclusion of his state collateral review proceedings
given that those proceedings ended, at the latest, on July
18, 2016 when the state trial court denied his second motion
for relief from judgment and he filed his letter request to
re-open this case on October 31, 2016. Fourth, he did not
file an amended petition with his request to re-open the
case. Consequently, Petitioner has failed to comply with the
conditions of the stay.

Accordingly,
the Court DENIES Petitioner's letter request to proceed
on his habeas claims. Rather, in accordance with precedent
from the United States Court of Appeals for the Sixth
Circuit, the Court VACATES the stay as of the date it was
entered, February 13, 2014, and DISMISSES the petition for a
writ of habeas corpus. See Palmer v. Carlton, 276
F.3d 777, 780-82 (6th Cir. 2002) (“If either condition
of the stay is not met, the stay may later be vacated
nunc pro tunc as of the date the stay was entered,
and the petition may be dismissed.”); see also
Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014)
(affirming district court's dismissal of petition based
upon petitioner's failure to comply with conditions of
stay). This case is CLOSED for all purposes.

Before
Petitioner may appeal the Court's decision, a certificate
of appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a federal
court denies relief on procedural grounds without addressing
the merits of a habeas claim, a certificate of appealability
should issue if it is shown that jurists of reason would find
it debatable whether the petitioner states a valid claim of
the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484-85 (2000). Reasonable jurists could not
debate the correctness of the Court's procedural ruling.
Accordingly, the Court DENIES a certificate of appealability.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Lastly,
the Court DENIES Petitioner leave to proceed in forma
pauperis on appeal as an appeal cannot be taken in ...

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